Hate speech versus free speech

After thirteen years of democracy, we still seem ill at ease with the concept of freedom of expression. I wonder sometimes if we have not been so indoctrinated by the apartheid state that we don’t really believe that people should more or less have the right to say anything.

I often get phone calls, for examples, from people who have been called “moffie” at work and what to “lay a charge of hate speech” against the person concerned. And then there are those sensitive individuals who cannot believe one should be allowed to say that god is dead or, worse, that he is a stupid and narrow minded god.

So it was good to see that the Human Rights Commission (HRC) has rejected complaints by Helen Suzman and others that Ronnie Kasrils has engaged in hate speech when he compared the Israeli government policies in the occupied territories to the Nazi regime.

The Constitutional Court has not definitively spoken on the meaning of the hate speech clause in section 16(2)(c) of the Constitution which states that the right to freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

There is of course the hate speech provision in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which is less restrictive than the one in the Constitution and may thus be unconstitutional. But for the time being it would suffice to focus on what this section of the Constitution mean.

What most people don’t understand that hate speech as defined in the Constitution does not include merely hurtful speech or speech that is insulting or upsetting. Calling someone the K word or calling a woman a bitch is nasty and bad mannered, but it ain’t hate speech.

What is required, first, is for the speech to “advocate hatred”. The bad mouthing must therefore be for the purpose not merely of insulting someone but of wanting others in society to hate the person and the group he or she belongs to.

Second it must constitute incitement to cause harm. It need not have the intention but must have the effect of causing other people to want to harm the person or group under attack. But the harm, says the HRC, does not have to be physical harm and can also include severe emotional harm.

For example, calling someone the K word in and of itself won’t constitute hate speech. But a speech in which a person uses the K word and then goes on to tell the audience that black people are about to kill all the whites when Mandela died and that all black people are pigs or baboons, could well cross over into hate speech.

I think it is important that public spaces like schools, places of employment and newspapers should be kept free as far as possible of all hateful speech, whether it constitutes “hate speech or not. But if stupid people want to make fools of themselves in private conversations, well, maybe the law is not the best way to deal with it.

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